The question which we will ultimately have to resolve will be a political question. I am hoping the witnesses before us will tell us what the responsibility of the Congress is when a political question comes before us.

Would this give us license to do whatever we want to do; or does that impose upon us a heavier than ordinary obligation to respect the Constitution and the amending process? We know that the ultimate decision rests with us; there is no review in the courts. The review will take place in every Members' conscience and in the Congress itself.

I am anxious to hear what the witnesses will tell us about the nature of the decision we will be asked to make; particularly, its effect on the process and in terms of the precedents what our response to the options will be. Will we establish good precedents or bad precedents once we take a particular view?

I know that ultimately the witnesses will be very helpful to us because it is not a question of the merits of the equal rights amendment, but rather a matter of how the Congress will function this time and with similar problems which will undoubtedly arise in the future. Mr. EDWARDS. The gentleman from Massachusetts, Mr. Drinan. Mr. DRINAN. I have no comments at this time, Mr. Chairman, except to say this is obviously a very serious problem and that I am glad we are considering it.

The States have not ratified the amendment. Three more States are necessary. I look forward to these hearings to see if somehow this question can be resolved.

Mr. EDWARDS. The gentleman from Illinois, Mr. McClory.
Mr. MCCLORY. I do have a brief statement.

As an original sponsor of the equal rights amendment, and, as you know, the principal proponent on the Republican side of the aisle when it gained overwhelming approval in the House of Representatives in 1972, I am, nevertheless, unhappy about the convening of this meeting to consider the proposals to extend the time within which the States might ratify the equal rights amendment.

Mr. Chairman, my support of ERA has not diminished. I have exerted every possible influence to encourage ratification of the equal rights amendment by members of the Illinois General Assembly. I do not have any reason to question the constitutionality of the Congress to act on the subject of extending the time for States to ratify. For that matter, there is probably no question that the Congress could express iself legislatively on the question of rescission once ratification has occurred.

However, I feel on both of these subjects it is a strategic mistake to consider legislation to extend the time beyond the traditional 7 years— as set forth in the original resolution adopted by the House and the Senate.

In addition, on the question of rescission-whether we should specifically authorize, or contrariwise, deny that the States have any such right-action of either type could have only an adverse effect on the question of ultimate ratification of ERA.

Mr. Chairman, let me laud those original supporters of the equal rights amendment who supported the measure before our committee in 1972. They were a very stable and courageous group who sought only to assure that men and women in our Nation have equal constitutional

rights. Some subsequent supporters of the equal rights amendment have unfortunately confused this simple constitutional issue with subjects which I would regard as wholly irrelevant and highly prejudicial to the equal rights movement.

It seems to me that lately we have come to realize that some of these irrelevant issues have interfered with the logical and, in my view, necessary adoption of the constitutional change which is implicit in the equal rights amendment.

If these hearings could result in a reaffirmation of our support for ERA, then they would serve a useful purpose. If in urging an extension of the time for the States to ratify we acknowledge a weakness in our commitment, then the effort here will have been in vain, and the result will be contrary to that anticipated by the sponsors.

For these reasons, Mr. Chairman, I have declined to sponsor this legislation. I would prefer that it remain dormant as an issue for the simple reason that, in my view, the measure, if acted upon, will do more harm than good to the cause of assuring equal constitutional rights to men and women in our Nation. [Applause.]

Mr. EDWARDS. Please stop. This a congressional hearing.

We are pleased to have with us, sitting with the subcommittee today, a distinguished lawyer and member of the full Judiciary Committee, although not a member of the subcommittee, the gentlewoman from New York, Ms. Holtzman.

Ms. HOLTZMAN. Thank you very much, Mr. Chairman.

And I thank the members of the subcommittee for their graciousness in inviting me here.

VOICE. It is very difficult for us to hear the lady.

Ms. HOLTZMAN. Mr. Chairman, I wish to thank you and the members of the subcommittee for your graciousness

VOICE. It is still not good.

Mr. BUTLER. There is a seat on the front row.

VOICE. I am not that deaf.

Ms. HOLTZMAN. Mr. Chairman and members of the subcommittee I wish to thank you for your graciousness and your courtesy in inviting me to sit with you today.

On behalf of the 20 other persons who have cosponsored House Joint Resolution 638, I wish to thank the subcommittee for its consideration of this matter and for holding hearings on it.

The cosponsors of this resolution have every hope that the equal rights amendment will be ratified before March 22, 1979, but do believe there might be need for an insurance policy to assure that the deadline will not arbitrarily end all debate on the ERA.

Although the question of equal rights for women is just as vital and alive today as it was in 1972 and the need for the amendment is just as great as it ever was, all of us recognize that the amendment has generated substantial interest in the public, but, unfortunately, some misinformation as well. It is precisely for this reason that we think that there ought to be ample opportunity for State legislatures to consider the ERA thoroughly and to conduct an informed debate about it. Indeed, the introduction of this resolution is simply to assist Congress in its commitment to assure a full and informed and knowledgeable debate in the State legislatures on this matter.

Mr. EDWARDS. Thank you.

Our first witness today is John M. Harmon, Assistant Attorney General of the Office of Legal Counsel, U.S. Department of Justice. We are pleased to have you, Mr. Harmon. And would you please introduce your colleagues. And then you may proceed with your statement.

TESTIMONY OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY HERMAN MARCUSE, LARRY A. HAMMOND, AND LARRY L. SIMMS

Mr. HARMON. Fine, Mr. Chairman. Thank you.

I have from the Office of Legal Counsel Mr. Herman Marcuse, Mr. Larry Hammond, and Mr. Larry Simms.

Mr. EDWARDS. We are pleased to have you.

You may proceed.

Mr. HARMON. Mr. Chairman, I have already furnished to the committee

Mr. EDWARDS. Would you speak directly to the microphone so people can hear you in the rear?

Mr. HARMON. I have already provided the committee a copy of my opinion of October 31 to Robert Lipshutz on the question of the constitutionality of the House Joint Resolution 638, together with a formal statement.

With your permission, Mr. Chairman, I should like simply to summarize the principal points made in that opinion, and then try to answer your questions.

Mr. EDWARDS. Without objection, both documents will be made a part of the record.

[The prepared statement of Mr. Harmon follows:]

STATEMENT OF JOHN M. HARMON, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. Chairman and members of the subcommittee, I am pleased to appear before this Subcommittee to discuss what, at least to me, are difficult and complex constitutional questions raised by H.J. Res. 638. That resolution would extend the period available to the States for ratification of the proposed Equal Rights Amendment (ERA) until March 22, 1986.

I should state at the outset that, while the Administration has publicly taken a position supporting an extension such as the one contemplated on H.J. Res. 638, the purpose of my appearance before this Subcommimttee is not to discuss the merits of the proposed extension but rather to provide whatever legal advice I can regarding the constitutional issues raised by this resolution.

As you may be aware, in my capacity as Assistant Attorney General for the Office of Legal Counsel. I have already given my opinion to Robert Lipshutz, Counsel to the President, on the constitutionality of Congress' extending the time period available for ratification of the ERA. That opinion was issued October 31, 1977, and is appended to this statement. I would ask, Mr. Chairman, that the opinion be considered as a formal part of my statement.

Before addressing the constitutional questions raised by the resolution, I would first make several introductory observations. First, I see as essentially separate matters whether H.J. Res. 638 is constitutional and whether the issues it raises are susceptible to judicial resolution. In my view, it is important in any discussion of these issues to avoid a suggestion that because the 95th Congress or a successor Congress may have the final word on their resolution, the constitutionality of this resolution becomes an easier or an avoidable question. Secondly, I think that the lack of authoritative judicial precedent or guidance from the language of the Constitution itself makes it difficult to conclude with

certainty that H.J. Res. 638 is or is not constitutional. Finally, even though I think that the determination whether this resolution is constitutional does not turn on whether an extension would free ratifying States to "rescind" their ratifications, I address that question in some detail because I feel that discussion of this question may be helpful in the general debate over this resolution. On the main question before this Subcommittee, it is my opinion that Congress does have the power to extend the ratification period for the ERA. The Supreme Court recognized in Dillon v. Gloss, 256 U.S. 368 (1921) that as an incident to the Article V power to propose amendments to the Constitution, Congress has the power and responsibility to assure that the amendment has been ratified "within some reasonable time after the proposal," Dillon v. Gloss, 256 U.S., at 375, and that the amendment reflects the reasonably contemporaneous "expression of the approbation of the people" in three-fourths of the States. Id. However, it is clear that the Court considered the question of timeliness of ratification to be one of several "subsidiary matters of detail," Dillon v. Glo88, 256 U.S. at 376, necessarily delegated to Congress as an incident of the ratification process which do not go to the substance of the proposed amendment.

Congress did have the power to make the time period for ratification a substantive part of the amendment by including a time limit in the text of the amendment itself as was the case with the Eighteenth, Twentieth, Twenty-first, and Twenty-second Amendments. Had the 7-year time limit been placed in the text of the ERA, it is arguable that this Congress could not extend the time limit without beginning the ratification process anew.

However, the 92d Congress did not put a time limit in the text of the ERA but rather stated in the proposing resolution that the States should have at least 7 years to consider ratification of the amendment.

By placing the time period in the proposing resolution rather than in the text of the amendment, the 92d Congress effectively decided that the proposal should remain viable for at least 7 years without barring a subsequent Congress from making a more informed judgment at a later time as to the reasonableness of the time period for ratification of the ERA. Indeed, as a matter of logic, the determination whether circumstances are such that ratification can be said to have been reasonably contemporaneous would be better made by the Congress in session when the ratification occurs than by the proposing Congress. Only the later Congress can make the determination, referred to by Chief Justice Hughes in Coleman, whether the conditions which prompted the proposal of an amendment have "so far changed since the submission as to make the proposal no longer responsive to the conception which inspired it.” 307 U.S. at 453. In sum, I conclude that the 95th Congress, on the basis of a record presumably more substantial than that before the 92d Congress, may determine that an extension of the time limit is reasonable and thereby extend the period during which the States may consider ratification of the ERA.

With regard to the question whether the resolution to extend the period must be approved by a two-thirds vote in each House or whether a simple majority is constitutionally sufficient, it is my opinion that a two-thirds vote is not required. This conclusion follows from the holdings in Dillon and Coleman v. Miller, 307 U.S. 433 (1939), first, that a constitutional amendment may only become law if it has been ratified "within some reasonable time after the proposal," Dillon v. Gloss, 256 U.S., at 375, and second, that the Constitution commits to Congress both the power and the duty to decide whether that implied condition of reasonably contemporaneous ratification has been satisfied. Dillon v. Gloss, 256 U.S., at 375-76; Coleman v. Miller, 307 U.S., at 454, 456, 458-59. Congress must have the ability to make the required determination. A requirement of a two-thirds vote to accept or reject the purported ratification of a constitutional amendment could frustrate the amendment process as the failure to obtain the two-thirds vote would not resolve the question committed by the Court in Coleman to the Congress. Under the decision in Coleman it is the responsibility of Congress to determine whether a proposed amendment has been ratified.

Moreover, a requirement of a two-thirds majority would be incompatible with the operating principle of our Constitution that those cases in which a greater than majority vote are to be required are clearly contemplated and made explicit in unmistakable language.

Finally, with respect to the possible effect of the extension on the power of the States to rescind prior ratification, it is my opinion that the extension would not give rise to any right of rescission and furthermore that Congress cannot give to the States a right to rescind by any means short of amending Article V

of the Constitution. The proposition was advanced by James Madison during the debates in the States over adoption of the Constitution that a State's ratificaion must be unconditional and irrevocable. Article V gives to the States the power to ratify a proposed amendment, but not the power to reject. This proposition has been consistently accepted by every Congress which has faced a question as to the validity of a State's ratification. In 1926 a resolution was introduced in the Senate to propose an amendment to Article V to give the States the power to rescind a prior ratification of a constitutional amendment at any time before the amendment had been accepted by three-fourths of the States. That resolution failed. Under the consistent interpretation of Article V of the Constitution, it is my view that a State which has once ratified an amendment is powerless to rescind that ratification and that the sole power to review a State's ratification at a later date to determine if it still reflects the reasonably contemporaneous approval of the proposed amendment by the required number of States is vested in the Congress. Coleman v. Miller, 307 U.S., at 454, 456, 458-59.

There is serious question whether a court would undertake to settle these issues. The Supreme Court held in Coleman that Article V vested in the Congress the authority and responsibility to determine whether a proposed amendment has been duly ratified. That case dealt with the question of the timeliness of ratification as well as the validity of a State's ratification after a prior vote of rejection. The resolution before this Subcommittee raises additional questions, different questions going to the very essence of the amending process. For that reason and in light of more recent Supreme Court decisions narrowly limiting the scope of the political question doctrine, it is far from clear that the Court today would say that these questions concerning the interpretation and application of Article V are exclusively reserved to the Congress. However, the possibility of judicial review cannot and should not relieve the Congress of its duty to assure itself that its actions are consistent with the Constitution.

In conclusion, there are no easy answers to the difficult constitutional questions presented by this resolution. It is my view that the resolution is constitutional; Congress has the power to extend the time period for consideration of the ERA. The sole responsibility for the exercise of that power is yours. I will be pleased to try to respond to your questions.

DEPARTMENT OF JUSTICE, Washington, D.C., October 31, 1977. To: Hon. Robert J. Lipshultz, Counsel to the President.

Subject: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment

This responds to your request for our opinion regarding the constitutionality of extending the period, presently scheduled to expire on March 22, 1979, for ratification by the States of the proposed Equal Rights Amendment.

In the course of addressing this general question, we have identified a number of discrete questions that we will discuss. Briefly, our views are as follows. (1) no authority suggests persuasively that an extension of seven years would be per se unconstitutional; (2) congressional action to extend the deadline for ratification can take the form of a concurrent resolution subject to majority vote of a quorum of each House; (3) we do not think that an extension would empower the States which have ratified the ERA prior to the extension to rescind that ratification during the extension period; (4) we doubt Congress may extend a right to rescind to States during the seven-year extension period; and (5) we believe that at least some of these issues would probably be held to present justifiable controversies in appropriate cases.

Before addressing these questions, we would first make several introductory observations. First, we see as essentially separate matters whether H.J. Res. 638 is constitutional and whether the issues it raises are susceptible to judicial resolution. In our view, it is important in any discussion of these issues to avoid a suggestion that because the 95th Congress or a successor Congress may have the final word on their resolution, the constitutionality of this resolution becomes an easier or an avoidable question. Secondly, we think that the lack of authoritative judicial precedent or guidance from the language of the Constitution itself makes it difficult to conclude with certainty that H.J. Res. 638 is or is not constitutional. Finally, even though we think that the determination whether this resolution is constitutional does not turn on whether an extension would free ratifying States to "rescind" their ratifications, we address that question in some